United States v. One 1970 Pontiac GTO, 2-Door Hardtop

OPINION

This is an appeal from a judgment forfeiting the appellant’s automobile under 21 U.S.C. § 881. The appeal raises three issues: (1) Was the evidence sufficient to prove that the vehicle was used to facilitate the sale of a controlled substance? (2) Do 21 U.S.C. § 881 and 19 U.S.C. § 1615 unconstitutionally impose upon the claimant the burden of proof after the Government proves probable cause to forfeit? (3) Must the Government prove probable cause by clear and convincing evidence?

The evidence amply proved that this automobile was used by one Bautista (not the claimant) to further every aspect of the heroin transaction for which Bautista was convicted, except the physical transportation of the contraband. The Government informant paid him for the heroin while both were in the automobile. With exceptions not here pertinent, a vehicle which is used to transport contraband is subject to forfeiture, but the statute does not limit forfeiture to transportation situations. Rather, it subjects to forfeiture all vehicles “which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of” controlled substances. (21 U.S.C. § 881 (a)(4).) This automobile was used to help the sale of the contraband; it was not used merely to commute to the scene of criminal activity. (Contrast *66Howard v. United States (9th Cir. 1970) 423 F.2d 1102.) Accordingly, the evidence was sufficient to establish that the vehicle was used “to facilitate the . sale” of contraband within the meaning of 21 U.S.C. § 881(a)(4). (United States v. One 1950 Chevrolet 4-Door Sedan (10th Cir. 1954) 215 F.2d 482, 484; see Howard v. United States, supra, 423 F.2d at 1103.)

Appellant’s constitutional attack on 21 U.S.C. § 881 and 19 U.S.C. § 1615 is mounted on the premise that forfeiture statutes are essentially criminal; therefore, the shifting of the burden of proof to the claimant denies him due process. Forfeiture statutes are deemed criminal for the purpose of protecting rights secured by the Fourth and Fifth Amendments (Boyd v. United States (1886) 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746), but they are predominantly civil. Despite some dicta attacking their civil characterization (United States v. United States Coin and Currency (1971) 401 U.S. 715, 719-20, 91 S.Ct. 1041, 28 L.Ed.2d 434), the Supreme Court has firmly refused to broaden the criminal aspect of forfeiture so as to encompass a wider range of constitutional protections. (Calero-Toledo v. Pearson Yacht Leasing Co. (1974) 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452; One Lot Emerald Cut Stones and One Ring v. United States (1972) 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438. Accord: Bramble v. Richardson (10th Cir. 1974) 498 F.2d 968; United States v. Mendoza (5th Cir. 1973) 473 F.2d 692.) Accordingly, we conclude that the challenged forfeiture statutes are not criminal enough to prevent Congress from imposing the burden of proof on the claimant, and we uphold the constitutionality of 21 U.S.C. § 881 and 19 U.S.C. § 1615.

Finally, appellant argues that the Government has to prove probable cause by clear and convincing evidence, rather than by a lesser standard of persuasiveness. We do not reach this question because the district court stated that “the government has shown, by clear and convincing evidence, that the vehicle here involved was used to facilitate the sale of heroin.” Assuming, arguendo, that the Government’s evidence must be more than ordinarily persuasive, the district court concluded that the higher standard had been met. The record provides no basis for disturbing the district court’s assessment of the strength of the evidence.

Affirmed.